Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

In my op-ed article in yesterday’s Minneapolis Star Tribune, I gave Minnesota good marks on moving toward better, science-based investigative practices, particularly recording interrogations (required by state Supreme Court decision since 1994) and the use of sequential, blind lineups (Ramsey County). I also made a brief reference to the problems at the St. Paul crime lab that have been in the headlines in the Twin Cities for some months. That situation is worth thinking about, especially in light of the unfolding scandal in the crime lab in Massachusetts I’ve been posting about (here and here, for example). (This will all be discussed in today’s free public presentation on Failed Evidence at the University of Minnesota Law School in Minneapolis at 4:30 pm.)

According to some of the reporting (for example, here and here), the problems in the St. Paul crime lab include lack of proper procedures and protocol, and failure to follow the procedures that did exist. Work was sometimes sloppy, and that has endangered some guilty verdicts.

Unlike some of the other crime lab scandals, in which fraud or errors seems to have represented an effort to help law enforcement with erroneous results that supported findings of guilt, the errors in St. Paul actually seem to have undermined the fact finding process in both directions: false positives and false negatives. This highlights an important point: bad forensic work can mean not only that the innocent are convicted, but that the guilty may go free.

A court has heard multiple days of testimony about the faulty lab work, and a ruling is expected after the first of the year. In the meantime, the investigation continues, with at least one case dropped and others possibly headed in that direction.

All of this cries out for change. Crime labs should be independent of police or prosecutorial control. (Of course, this isn’t enough by itself; the lab in trouble in Massachusetts was under the control of the state’s health department when the misdeeds occurred.) Proper protocol and procedures are essential, along with periodic auditing and accountability to make sure this means something. And rigorous proficiency testing and certification should be mandatory.

We would accept no less in a lab that tests over-the-counter medicines for effectiveness and safety; why would we accept less for labs that guide the criminal justice system?

[…] those not familiar with what’s been happening at the St. Paul lab, take a quick look at my Failed Evidence blog post from last Thursday, which will link you to much of the news coverage in the last several months. We’ve learned […]

David, you may be aware that Ontario went through a crime lab crisis when a doctor considered to be one of, if not the foremost, paediatric surgeons in Canada was found to have exaggerated his credentials and contributed to a series of wrongful convictions. To make matters even worse, he contributed to parents being wrongfully convicted of killing their children. A wide ranging judicial inquiry found that he was not properly supervised by the heads of the Centre for Forensic Sciences where he worked – in part no doubt because they did not have the qualifications required to assess his work. It is difficult to overstate the esteem he enjoyed in the medical community and the awe with which he was regarded by the defence and prosecution bars. If he pointed a finger of guilt at an accused, counsel would immediately recommend a guilty plea. When it was finally discovered that the emperor was wearing no clothes, guilty verdicts were set aside, villified people released from prisons, and lots of public money paid out to settle law suits. Ontario now has an arm’s length independent agency to review death investigations. But I wonder if a more radical solution is required. Having regard to the persuasive powers medical experts bring to a jury trial, should their evidence be presented in the context of an adversarial contest? In Canada and I believe the US, the fact that two experts are unable to agree on the cause or instrumentality of death does not necessarily give rise to a reasonable doubt. It is up to the jury to assess the evidence. They can convict as long as they are satisfied beyond a reasonable doubt by the opinion of the prosecution’s expert. If an expert does not agree with the prosecution’s position, how can it be said that the guilt of the accused has been established beyond a reasonable doubt? I suggest it might be better to a have a rooster of court experts. The final decision on the expert to give evidence would be in the hands of the judge after hearing submissions from counsel. The expert would not formulate his/her opinion until after receiving submissions from counsel. The evidence of the court expert would be subject to cross-examination by both counsel. In the absence of establishing sufficient cause, neither side would be permitted to call expert evidence on the point covered by the court’s expert. This would avoid “duelling experts” and ameliorate an unfortunate aspect of our adversarial trial system not contemplated by those who devised it.